Subject: Re: [GNSO-RPM-WG] ACTION ITEM: Questions re: Converted Individual Proposal #34/URS Rec #9
From: BECKHAM Brian <[email-masked]>
To: Griffin Barnett <[email-masked]>, Julie Hedlund <[email-masked]>, "[email-masked]" <[email-masked]>
Date: Fri, 2 Oct 2020 09:43:54 +0000

Thanks Griffin,

I mainly agree re combining these, and I apologize for introducing any confusion last night (as mentioned I was in the car so could not see the text onscreen).

A few suggestions (the numbers refer to Griffin’s new numbering):

Implementation bullet 2: add “, where applicable,” so that it reads “The Notice of Complaint should, where applicable, contain…” as (based on our UDRP experience) this will not be required in the majority of cases, and may introduce confusion if made a standard practice

Implementation bullet 3: I think this proposed revision would track the intent, as we do not want to create a wide open option to submit documents grossly in excess of the word limit:  “If a translation is ordered, as long as the original submission meets the word limits in the original language, the translation of the original submission may nominally exceed the prescribed word limit;  for the avoidance of doubt, the translation may not introduce new facts or arguments which may be contained in the Language of Proceeding submission.”

Implementation bullet 4: should be slightly reworded in the beginning, and should refer to examiners, not providers, and I propose that it read, in full:

“The IRT should consider developing guidance to assist URS examiners in deciding whether to deviate from the default language in the context of a particular proceeding.  Such guidance may take into account the language of the relevant registration agreement (irrespective of whether registered through a privacy or proxy service or reseller), the language requested by one of the parties, principles articulated in the relevant section (presently 4.5) of the WIPO Overview, or any other matters considered relevant.”

For context on the above:  the language “for purposes of the parties’ filings and when issuing a Determination” is unnecessary as those items are covered by the “Language of Proceeding” concept.  I am also unclear on the relevance of the predominant language of the country of the registry, and frankly for that of the country of the registrar or privacy/proxy service or reseller, and for that matter even that of the registrant.  For example, if I register a domain under a RY (or privacy/proxy service or reseller) based in Switzerland, what language would control under this proposal?  French?  German?  Italian?  (There was even a narrowly-defeated vote on adding English as a fourth official language.)  None of those 3 would be the language I would use to register a domain name, and introducing them into the proceedings could create an unfair prejudice.

Brian

From: GNSO-RPM-WG <[email-masked]> On Behalf Of Griffin Barnett
Sent: Friday, October 2, 2020 12:17 AM
To: Julie Hedlund <[email-masked]>; [email-masked]
Subject: Re: [GNSO-RPM-WG] ACTION ITEM: Questions re: Converted Individual Proposal #34/URS Rec #9

Hi all,

As I noted during the call where this came up, I see Converted Individual Proposal #34 and Recommendation #9 as complementary and not duplicative or conflicting.

Converted Proposal 34 says:

The Working Group recommends that the URS Rules be amended to incorporate in full Rule #11 of the UDRP Rules regarding “Language of Proceedings”, see: https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en

“(a) Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.

(b) The Panel may order that any documents submitted in languages other than the language of the administrative proceeding be accompanied by a translation in whole or in part into the language of the administrative proceeding.”

Implementation Guidance:

As implementation guidance, the Working Group recommends that the IRT consider the following:

·       Preliminary submissions by either side to the Panel regarding the language of the proceeding should be limited to 250 words, and not be counted against the existing URS word limits.

·       The Notice of Complaint should contain a section explaining that the Respondent may make a submission regarding the language of the proceedings.

·       If a translation is ordered, exceeding the URS word limits should be permitted, as long as the original submission meets the word limits in the original language.

Rec 9 says:

The Working Group recommends that as implementation guidance, the IRT consider developing guidance to assist the URS providers in deciding what language to use during a URS proceeding and when issuing a Determination. Such guidance should take into account the fact that domains subject to a URS Complaint may have been registered via a privacy or proxy service and the location of the service will determine the language of that service, which may be relevant.

Furthermore, the guidance may include, but is not limited to:

1) whether it is possible to ascertain the language of the registration agreement from the registrar;

2) principles articulated in section 4.5 of the WIPO Overview;

3) procedures followed under the UDRP;

4) the language used by the registry and/or predominant language of the country of the registry; and

5) the language used by the registrar and/or predominant language of the country of the registrar.

If anything, Rec 9 could be absorbed as Implementation Guidance to Converted Individual Proposal 34, which provides a more concrete rule in terms of which language should be used for URS proceedings and brings it into conformity with the UDRP rule – which creates consistency between these mechanisms and predictability for users, while preserving panelist discretion to deviate from the default language where appropriate.

I also note my recollection that Rec 9 may have been prepared before we understood that we may have consensus on moving Individual Proposal 34 on as a Recommendation and thus Rec 9 was meant to address concerns about the current URS rule on language of proceedings which refers to English as the default language always (with Notice of Complaint only being translated into the “predominant language used in the registrant’s country or territory” and where the Response could be in that same “predominant” language) – see URS Procedure 4.2 and URS Rules 4(b) and 9.

Accordingly, I might suggest merging the two pieces as follows:

URS Recommendation [/ Converted Individual Proposal] #xx

The Working Group recommends that the URS Rules be amended to incorporate in full Rule #11 of the UDRP Rules regarding “Language of Proceedings”, see: https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en

“(a) Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.

(b) The Panel may order that any documents submitted in languages other than the language of the administrative proceeding be accompanied by a translation in whole or in part into the language of the administrative proceeding.”

Implementation Guidance:

As implementation guidance, the Working Group recommends that the IRT consider the following:

·       Preliminary submissions by either side to the Panel regarding the language of the proceeding should be limited to 250 words, and not be counted against the existing URS word limits.

·       The Notice of Complaint should contain a section explaining that the Respondent may make a submission regarding the language of the proceedings.

·       If a translation is ordered, exceeding the URS word limits should be permitted, as long as the original submission meets the word limits in the original language.

••••••• The should also IRT consider developing guidance to assist URS providers in deciding whether to deviate from the default language in the context of a particular proceeding for purposes of the parties’ filings and when issuing a Determination. Such guidance should take into account the fact that domains subject to a URS Complaint may have been registered via a privacy or proxy service or reseller and the location of the privacy or proxy service provider or reseller may determine the language of the domain name registration agreement and thus the default language of the URS proceeding.  This potential guidance could also consider the relevance of other factors, such as the language requested by either party, the predominant language of the country or territory of the registrant, the language used by the registry and/or predominant language of the country of the registry, if different from that of the registration agreement, and the language used by the registrar and/or predominant language of the country of the registrar if different from the language of the registration agreement.

I hope these thoughts are helpful.

Best regards,

Griffin

  _____

<https://www.winterfeldt.law/>

Griffin M. Barnett

Associate

Winterfeldt IP Group

1601 K Street NW, Ste 1050

Washington, DC  20006<x-apple-data-detectors://12/1>

[email-masked]<mailto:[email-masked]>

+1 202 759 5836

From: GNSO-RPM-WG [mailto:[email-masked]] On Behalf Of Julie Hedlund
Sent: Thursday, October 1, 2020 4:55 PM
To: [email-masked]<mailto:[email-masked]>
Subject: [GNSO-RPM-WG] ACTION ITEM: Questions re: Converted Individual Proposal #34/URS Rec #9

Dear All,

Per the action item from the WG meeting on 01 October (see the notes and actions below), please see the following questions relating to Converted Individual Proposal #34 and URS Recommendation #9 and provide your input not later than 16:00 UTC on Monday, 05 October.

For reference see the following documents:

-- For Converted Individual Proposal #34, see page 7 at: https://docs.google.com/document/d/1qjiKBaAAMNPctSIwP932OKT6vrgkFXxdVYVf6DAz2no/edit?usp=sharing.

-- For URS Recommendation #9, see page 14 at: https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMPWMFY/edit?usp=sharing

Questions for review:

1. Whether these separate recommendations are in conflict or complementary.

2. if these separate recommendations are in conflict should the Implementation Guidance from the new recommendation be incorporated into recommendation #9.

Kind regards,

Mary, Ariel, and Julie

From: GNSO-RPM-WG <[email-masked]<mailto:[email-masked]>> on behalf of Julie Hedlund <[email-masked]<mailto:[email-masked]>>
Date: Thursday, October 1, 2020 at 3:45 PM
To: "[email-masked]<mailto:[email-masked]>" <[email-masked]<mailto:[email-masked]>>
Subject: [GNSO-RPM-WG] Notes and Action Items: RPM PDP WG Meeting 01 October 2020

Dear All,

Please see below the action items captured by staff from the RPM PDP Working Group call held on 01 October 2020 at 17:00 UTC.  Staff will post these to the wiki space.  Please note that these are high-level notes and are not meant as a substitute for the recording, chat room, or transcript. The recording, Zoom chat, transcript and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2020-10-01+Review+of+all+Rights+Protection+Mechanisms+%28RPMs%29+in+all+gTLDs+PDP+WG.

Best Regards,

Mary, Ariel, and Julie

==

Action Items:

URS Final Recommendations – Revised URS Recommendation #3

ACTION ITEM: Change “Working Group believes” to “Working Group is unaware of any contradiction” in the context.

Overarching Data Collection Recommendation

ACTION ITEM: Change text to “over the preceding period of [not less than every 12 months].

URS Rec # (was Individual Proposal #28):

ACTION ITEM: Put the four options for revised text out for review by the WG on the email distribution list and discuss during a future meeting.

URS Rec # (was Individual Proposal #34):

ACTION ITEM: Staff to send a separate email that will have links to both of the recommendations and will ask WG members to weigh in on 1) whether these separate recommendations are in conflict or complementary and 2) if they are in conflict should the Implementation Guidance from the new recommendation be incorporated into recommendation #9.

Notes:

1. Updates to Statements of Interest: No updates provided.

2. URS Final Recommendations – Revised URS Recommendation #3; see: https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMPWMFY/edit?usp=sharing [docs.google.com] [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMPWMFY/edit?usp=sharing*20*5bdocs.google.com*5d__;JSUl!!PtGJab4!viwPahgRdyDaYI1QnH4o6SssNP1HyOdHX9Yl7QDtKMfV-ZMJDRsQ9Jz3ch5aeO-25dFeTSaDsQ$>

ACTION ITEM: Change “Working Group believes” to “Working Group is unaware of any contradiction” in the context.

3. URS Final Recommendations – Revised URS Recommendation #2, see: https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMPWMFY/edit?usp=sharing [docs.google.com] [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMPWMFY/edit?usp=sharing*20*5bdocs.google.com*5d__;JSUl!!PtGJab4!viwPahgRdyDaYI1QnH4o6SssNP1HyOdHX9Yl7QDtKMfV-ZMJDRsQ9Jz3ch5aeO-25dFeTSaDsQ$>

-- The WG agrees to the revised language.

4. URS Final Recommendations – Revised URS Recommendation #8, continued from last meeting, see: https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMPWMFY/edit?usp=sharing [docs.google.com] [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMPWMFY/edit?usp=sharing*20*5bdocs.google.com*5d__;JSUl!!PtGJab4!viwPahgRdyDaYI1QnH4o6SssNP1HyOdHX9Yl7QDtKMfV-ZMJDRsQ9Jz3ch5aeO-25dFeTSaDsQ$>

New suggested text from staff: “In addition, the Working Group agrees that as set out in the URS Rules and Procedure, a domain name suspension can be extended for one additional year, and the WHOIS for the domain name shall continue to display all of the information of the original Registrant and reflect that the domain name will not be able to be transferred, deleted, or modified for the life of the registration.”

-- The WG agrees to the revised language.

5. Overarching Data Collection Recommendation; see: https://docs.google.com/document/d/1Yg6XP1USJFK7Ko5eQFD5EGNC4gwWM-vh07MGSqJ3e0Q/edit?usp=sharing [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1Yg6XP1USJFK7Ko5eQFD5EGNC4gwWM-vh07MGSqJ3e0Q/edit?usp=sharing__;!!PtGJab4!viwPahgRdyDaYI1QnH4o6SssNP1HyOdHX9Yl7QDtKMfV-ZMJDRsQ9Jz3ch5aeO-25dEO9RdHog$>

ACTION ITEM: Change text to “over the preceding period of [not less than every 12 months].

6. Individual Proposals Converted into Recommendations, beginning with URS Recommendations; see: https://docs.google.com/document/d/1qjiKBaAAMNPctSIwP932OKT6vrgkFXxdVYVf6DAz2no/edit?usp=sharing [docs.google.com] [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1qjiKBaAAMNPctSIwP932OKT6vrgkFXxdVYVf6DAz2no/edit?usp=sharing*20*5bdocs.google.com*5d__;JSUl!!PtGJab4!vZsg2hS1Risic1U8X8epV-sBDbYhlVUJXZ77LI1Q0wSRqEnapuPVHsTKSjS9nSBYoTRPwmVg2A$>

URS Rec # (was Individual Proposal #1):

-- The WG agrees to the recommendation and accompanying sections.

URS Rec # (was Individual Proposal #2):

-- The WG agrees to the recommendation and accompanying sections.

URS Rec # (was Individual Proposals #26 and #27):

-- The WG agrees to the recommendation and accompanying sections.

URS Rec # (was Individual Proposal #28):

Discussion:

-- Some support for “effective, enforceable, and published”.

-- Some questions about what “enforceable” means and who would enforce.

-- WIPO has a declaration of independence and impartiality.  Published on the web site.  Covers the same ground as conflict of interest.

-- Seems obvious that it is enforceable by the provider, but make that clear.  Several WG members agree.

-- “enforceable by the provider against examiners” and delete “binds”.

-- Need to note that you are enforcing against any examiner that violates the policy.

-- What is the concern we are looking to address?

-- “Each URS Provider shall have an enforceable published examiner Conflict of Interest policy.”

-- Others disagree on using the term “enforceable”.

-- Take out “enforceable” and just say “published”.

Revised Text Options for the WG to consider:

Option 1:

The Working Group recommends that the URS Rule 6 be amended to add a requirement that each URS Provider shall have an effective and published Conflict of Interest (COI) policy that the Provider enforces against any Examiners who violates such policy.

Option 2:

The Working Group recommends that the URS Rule 6 be amended to add a requirement that each URS Provider shall have an enforceable and published Examiner Conflict of Interest (COI) policy.

Option 3:

The Working Group recommends that the URS Rule 6 be amended to add a requirement that each URS Provider shall have a published Examiner Conflict of Interest (COI) policy.

Option 4:

The Working Group recommends that the URS Rule 6 be amended to add a requirement that each URS Provider shall have a published Conflict of Interest (COI) policy that the Provider may reasonably enforce against any Examiner who violates such policy.

ACTION ITEM: Put the four options for revised text out for review by the WG on the email distribution list and discuss during a future meeting.

URS Rec # (was Individual Proposal #34):

-- Note that the recommendation may conflict URS Rec #9.

-- Could be that they complement each other – could bring to Rec #9 the bullet points on Implementation Guidance from the new URS rec, and strike the recommendation.

-- Useful guide for panelists, but shouldn’t be mandatory.

-- No reason to have the conflicting individual proposal recommendation.

-- Consider adding the IG to Rec #9.

-- Concerns about dropping this new recommendation; these aren’t duplicative.

-- Can we make the complementary?

ACTION ITEM: Staff to send a separate email that will have links to both of the recommendations and will ask WG members to weigh in on 1) whether these separate recommendations are in conflict or complementary and 2) if they are in conflict should the Implementation Guidance from the new recommendation be incorporated into rec #9.

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